• Indian Citizen in USA divorce and child

I am indian citizen on H4 visa in USA. 5 year old daughter also Indian citizen on same H4 visa. Husband is indian citizen on H1B visa.
I wish to leave him as he is abusive. He is refusing to let my daughter go with me to India. What can I do? I am afraid of him as he is physically intimidating. How can I manage to take my daughter and go to India?
Asked 29 days ago in Family Law
Religion: Hindu

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16 Answers

File a domestic violence case against him in the US. Contact the embassy and ask them for help. You can leave him and go back as you and your child sre both Indian citizens.

After reaching India you can file cases against him.

You can also ask your parents to file a habeas corpus petition in the high court in India and ask the authorities to produce you and your child. The embassy officials will contact you.

Rahul Mishra
Advocate, Lucknow
11560 Answers
20 Consultations

5.0 on 5.0

You need to file divorce and custody for child. You will get the same if you prove that he is not a good father

Prashant Nayak
Advocate, Mumbai
22417 Answers
49 Consultations

4.4 on 5.0

File for divorce in USA seek spousal support and custody of your child 


2) welfare of child is paramount consideration 


3) court would award you custody of child 


4) you can with court permission travel to India with the child 


5) if your husband abuses you file police complaint against him in USA 

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

Immediately lodge a police complaint over email and ask police to take you out of there, make sure police gives you a receipt of the complaint made and a report of enquiry over your email, it will help you in your case in india.


For further queries you can seek forums consent to connect me

Aveek Bose
Advocate, Kolkata
1215 Answers
9 Consultations

4.7 on 5.0

1. you cannot take your child to India until you have a Court order in this regard,

2. file a case of custody against your husband but even after winning the custody case, taking your kid to India will be a tough job,

the custody case will take a long time, and, the Court may, in case of the verdict in your favor, grant visitation rights to your husband, and further may restrain you to take away the child out of the reach of his biological father,

3. if things are not going in the right direction then you can think about parting the ways,

try to settle the matter amicably with your husband involving elders/relatives/friends etc and go for Mutual Consent Divorce which will be decided in 6-18 months, and you both will be free to live life with your wish,



Suneel Moudgil
Advocate, Panipat
2330 Answers
3 Consultations

4.7 on 5.0

Indian law and American law are different. The Violence Against Women Act is protect victims of domestic violence, and offers specific protections for people without legal status in the US. VAWA also protects men and children who are victims of domestic violence.If you are afraid of your husband or think they may hurt you, you can go to the court or the police to ask for a restraining order. When you contact police about domestic violence, their duty is to protect you from your abuser. 

Please do remember that who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system.

If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent. In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Welfare of child is paramount consideration in the case of custody.

A H4 visa is issued to dependent family members of H1 visa holders who would like to accompany the H1B visa holder to the U.S. during their stay. So you have 2 options 1. Come to India without approaching any court in US or 2. File a custody application and take permission from the court to travel with children. If someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court. So the choosing of second option may trouble when you are living from US if your husband approach the same court and you are not return to US 

When you reach at you home town you file complaint against husband and seek protection order from the court under DV act.



Ajay N S
Advocate, Ernakulam
3624 Answers
71 Consultations

5.0 on 5.0

Kindly call local police they will help you in this regard and protect from husband abuse.

Ganesh Kadam
Advocate, Pune
11668 Answers
109 Consultations

4.9 on 5.0

If your child's passport is also with you approach for a protection order in US and escape.



High Court of Madras

Rajaganapathy Ganesan
Advocate, Chennai
1804 Answers
8 Consultations

4.9 on 5.0

You give a complaint to the local police about his acts of intimidation.

You can express your fears apprehended by you towards the harm to the child if left with him and also being a female child, it is not advisable to leave her with the abusive husband.

You can obtain a restrain order against him restraining him from preventing you to travel to India with your child for the reason that the child and yourself are Indians by citizenship and if at all he requires any relief, he can approach only Indian court with regard to child custody and that the US court has no jurisdiction to decide about it.

You take the support of local police and look for safe and peaceful exit.


T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

Dear Sir/Madam,

You are suggested to submit the police complaint and then take your daughter safely. 

Ganesh Singh
Advocate, New Delhi
6512 Answers
13 Consultations

4.5 on 5.0

Take shelter of Indian embassy. You are not US citizen but on VISA. US law cannot impose restriction on you against travel of child.

Visa status whether H4 or H1B visa, dose not create any special right to father. Complain to local police and Indian Embassy for immediate assistance and immigration. 

Yogendra Singh Rajawat
Advocate, Jaipur
21402 Answers
31 Consultations

4.4 on 5.0

1. Make complaint against your husband for child abuse and cruelty against you in US court if he doesn't let you take your daughter with you. 

2. Police will provide you protection to take your child with you to India. 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

Get a police complaint against him there and leave with your daughter. 

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

you can file divorce petition and custody of child before US Court.  Consult Local Family Attorney . 

Mohammed Mujeeb
Advocate, Hyderabad
18935 Answers
11 Consultations

4.5 on 5.0

1. You shall have to avail the child custody order5 from the USA Court to bring your 5 years old daughter to India.


2. P)lease be informed that mother is considered as the natural guardian of her child, as per Indian Law, till he/she is 5 years old and thereafter father becomes his/her natural guardian.


Krishna Kishore Ganguly
Advocate, Kolkata
24708 Answers
701 Consultations

5.0 on 5.0

- Since you both are residing in USA , then for being separated , you both should file a joint petition for mutual divorce in USA , with the condition of child custody. 

- Legally , mutual divorce granted by USA court is valid in India. 

- Further ,if he refused for mutual divorce , then you can file divorce petition even in USA on the ground of cruelty , and can get contested divorce decree from court there .

- Legally a contested divorce is also valid in India. 

Mohammed Shahzad
Advocate, Delhi
5531 Answers
51 Consultations

5.0 on 5.0

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